IMPORTANT POINTS
If the transaction appears to be unconscionable, then the burden of proving that it was not induced by undue influence lie upon the person who was in a position to dominate the will of the other. Error is almost sure to arise if the order of these propositions are changed. The un-conscionable ness of the bargain is not the first thing to be considered. The first thing to be considered is whether the relation of the parties, was such as to put one in a position to dominate the will of the other.

JUDGMENT :

Bechu Kurian Thomas, J.

Total deprivation, through a partition deed and a release deed, of the property of a deaf and dumb sister forced her to approach the Court to restore her rights in her property and claim partition. Suit having been decreed, the eldest sister – the beneficiary under the two documents, has come up in appeal.

2. Mary, Leelamma and Aani are sisters. Mary is the eldest and Aani, the youngest. Admittedly, Leelamma, the second amongst the sisters, is a deaf and dumb person. She is also illiterate. Mary claims to have brought up Leelamma under her care and custody, conducted her marriage and that of her daughter too. Leelamma’s conjugal life with her husband did not last long as she came back along with her daughter to Mary’s care, on account of difference of opinion with her husband. Even after the death of their mother, Leelamma continued to live with Mary.

3. On 9-3-2011, Leelamma through her daughter Manju, as next friend, filed a suit as an indigent person before the Munsiff Court, Muvattupuzha, which was later transferred and renumbered as O.S. No.17 of 2015 on the files of the Subordinate Judge, Muvattupuzha. Alleging that the partition deed (Ext.A1) and the release deed (Ext.A2) executed on 5-1-2011 and 10-1-2011 respectively, were on account of fraud and undue influence exerted over the plaintiff, she sought for setting aside those two documents and for a declaration that the said deeds shall not affect the plaintiff’s right over her properties. For easier reference, the parties are referred to in this judgment, as they were arrayed in the trial court.

4. Ext.A1 is a partition deed, partitioning the 65 cents of property between the three sisters. As per the said deed, the properties left behind by their mother, having an extent of 65 Cents, was divided as two schedules - A and B. 1st defendant- Mary was allotted A schedule, comprising 60 cents, while B schedule, comprising just 5 cents, was allotted to the share of both plaintiff and the 1st defendant. Aani, the youngest sister and 2nd defendant, recited in the document that she is relinquishing her share in the properties. Thus, in short, when plaintiff received 2.5 cents of property under Ext.A1, the 1st defendant received 62.5 cents of property. Ext.A2 is a release deed executed within 5 days of execution of Ext.A1. Through that document, plaintiff is purported to have released her entire rights in the above referred 2.5 cents of property in favour of Mary. Thus Mary, the 1st defendant, became the absolute owner of the entire 65 cents.

5. When plaintiff’s daughter visited her during the last week of January 2011, plaintiff conveyed through gestures, that she had been taken to some place to give her signature and that her thumb impression was also taken. On enquiry, plaintiff’s daughter understood that Ext.A1 and A2 were created and that all rights in the property had been released by the plaintiff in favour of the 1st defendant, without even receiving any consideration. Plaintiff thus alleged that, Exts.A1 and A2 were created by undue influence, fraudulently, dishonestly and without her knowledge or consent.

6. The defendants filed separate written statements and controverted all allegations in the plaint. The 1st defendant questioned the right of the next friend to file the suit and also denied the incapacity of the plaintiff as far as her ability to comprehend and do things by herself was concerned and also denied the allegation of fraud, cheating and undue influence exerted by the defendants over the plaintiff. On the contrary, the 1st defendant stated that plaintiff and her daughter were looked after by the 1st defendant and her husband and they even got plaintiff's daughter married off. 1st defendant pleaded that plaintiff had agreed to execute the partition deed and that the documents were executed with full knowledge and consent of the plaintiff and also that she had received consideration for releasing her half right over the schedule pr